ExtortionLetterInfo Forums
ELI Forums => Getty Images Letter Forum => Topic started by: Oscar Michelen on July 12, 2012, 06:05:33 PM
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As many of you know, I have been representing Chaga International in a case brought by Masterfile ("MF") in the California District Court. MF sued them for a whopping $6,000,000.00. Well a few weeks ago, Judge Manuel Real of the court GRANTED our motion for summary judgment and threw out MF's complaint! We are in the process of entering the final judgment now. I will send Matt Chan the transcript so you can read what Judge Real said, but will summarize it here.
Basically, MF relies on compilation registrations whereby they send the Copyright office a CD containing thousands of images by various authors and list three random authors' names and then add "and other authors" under the section where the authors' names are supposed to go. They also use one date of publication for all the images, even though they may have been published at different times. They also do not list where the images were first published. They used this method because they relied on correspondence between Nancy Wolff, a photographer's lobbyist, and the Copyright Office, whose registrar at that time was Marybeth Peters.
Well for years, when we first started this program, I would argue with MF and their lawyers that the Copyright Office was dead wrong! This method of registration was invalid in my opinion as it did not comply with the specific language of the Act. I would get snide snickers and comments like "So you think you know better than the Copyright Office?" And I would reply "Not about everything, but about this - Yeah! It's Plain English. Read the statute. It must list the author's name and the date and place of publication. Furthermore, the Act states that compilation registration does not provide protection for the individual images contained in the compilation."
My arguments did not get very far until I was vindicated by Judge Loretta Preska's decision in Muench v. Houghton Mifflin which basically stated word for word what I had been saying. Muench (which was argued by my friend Russell Jackson at Skadden, Arp, Meagher & Flom) has been discussed at length on this site. Other courts soon followed suit, most famously the Alaska District Court in the case of Alaska Stock Photography v. Houghton Mifflin (also argued successfully by Russell). Only one lone judge in Utah held that he did not agree with Muench and awarded MF a judgment against a real estate company that used an MF image (that case was called Masterfile v. Gale). The lawyers in Utah for the Gale defendants did not argue the same argument as the lawyers in Muench for some reason, so the Utah court never really had to decide the specific issue. Instead, the court just added that it disagreed with Muench (If you want all the esoteric legal details, all of this is laid out in detail in my Memo of Law which Matt Chan uploaded or will upload soon).
Anyway, I basically stated that the same arguments as in Muench and Alaska Stock applied in this case and that the same result should apply. Motion papers and arguments were submitted back and forth and on June 18, a court date was set for submission of the motion. My local counsel advised me that there was no need to make a personal appearance as Judge Real relies almost exclusively on the papers and just wants to make sure no one has anything to add before he renders his decision on the record. MF's lawyer did attend and tried to briefly argue about an appellate case he felt was applicable.
True to his procedure, Judge Real read his decision on the record and dismissed the case stating in part:
Here, the registration fails to comply with section 409. The registrations have multiple deficiencies, including failure to name the authors or their nationalities or domiciles in certain instances. Further, they failed to name the titles of the individual works, the years in which the works were completed or the dates and nations of each work's first publication.
With respect to MF's argument that the Copyright Office told them it was OK to file this way, Judge Real stated:
An agency's interpretation is entitled to no deference if it conflicts with the clear intent of Congress. Here, Congress has clearly identified the registration requirements of Section 409, and thus the individual office's decision to develop procedures in conflict with those requirements is entitled to no [deference].
That courts in NY and California have now held that compilation registration is invalid shoots a poisoned arrow straight into the heart of MF's claims that it has copyrighted works and is therefore entitled to statutory penalties and attorney's fees. They will probably continue to argue that they feel the Utah decision is right,but that is a weak argument. Looking at the Alaska Stock, Muench and Chaga decisions, it is clear the courts in those three case thoroughly analyzed the registration method and the arguments raised by counsel. The Gale decision does not have the same depth of analysis and the court was not asked to rule if the registrations complied with Section 409 of the Copyright Act, so I believe that decision is of little or no value. Unfortunately, the Alaska Stock appeal is on hold as the plaintiff has field for bankruptcy so we will not have an appellate decision on this vital issue anytime soon. I was confident that the Ninth Circuit was going to uphold the decision in Alaska Stock which would have made for an even stronger position for our side.
Needless to say, its always nice to win. But to have this legal position upheld is even more important (at least to everyone but the folks at Chaga!). Let's wait and see what MF will do now in light of this decision.
I want to thank Russell Jackson and his team at Skadden, Arps for paving the way on this issue.
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Thanks for the report, Oscar!! (and many congrats!)
This must be a huge relief for your client, and a huge blow for Masterfile.
With the large amount of money that MF was seeking, I would imagine that they'd would have needed a very solid case indeed.
I guess that this was their big test of the system. By now, the only thing that the stock image houses can do is properly register their images.
S.G.
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That was great news and excellent reading, Oscar. Thank you so much for the work that you do which enables individuals like me to stick to our convictions that these payment extraction schemes need to be stopped because they are not only morally questionable but also, in most instances, clearly illegal.
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What a welcome back present this is!! I also got another welcome back present which I will share in a new thread..
In regards to this thread Masterfile will most likely think twice before pulling the lawsuit trigger again! and Congrats go out to Nancy Wolff from PACA, as well as Marybeth Peters, it was ultimately there direction that lead to this loss of huge proportions!...Way to go girls!
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Congratulations Oscar! Thank you for all that you do and I am so glad that you are on our side!
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Congratulations, Oscar! This is HUGE. This is a big step towards taking away the gill nets that are an important part of the "strategic litigation business model."
Now they have to register the images individually and properly follow the guidelines set by the law. It's the least they could be forced to do in the asymmetrical playing field they're currently abusing.
Thanks for your hard work in making this happen!
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The Transcript from June 18, 2012 has been posted. It's very direct and concise to the registration issue at hand.
http://www.scribd.com/doc/99957273/Masterfile-vs-Chaga-Transcript-of-Proceedings-June-18-2012
That Transcript followed the numerous arguments and heavy opposition presented by parties in support of Masterfile.
Masterfile vs. Chaga: Plaintiff's Oppose Defendants' Motion for Summary Judgment
http://www.scribd.com/doc/99956234/Masterfile-vs-Chaga-Plaintiff-s-Oppose-Defendants-s-Motion-for-Summary-Judgment
Masterfile vs. Chaga: Nancy Wolff Declaration Opposing Defendants' Motion Summary Judgment
http://www.scribd.com/doc/99955844/Masterfile-vs-Chaga-Nancy-Wolff-Declaration-Opposing-Defendants-Motion-Summary-Judgment
Masterfile vs. Chaga: Tanya Gangursky Declaration Opposing Defendants' Motion Summary Judgment
http://www.scribd.com/doc/99956021/Masterfile-vs-Chaga-Tanya-Gangursky-Declaration-Opposing-Defendants-Motion-Summary-Judgment
Masterfile vs. Chaga: Mary Beth Peters Declaration Opposing Defendants' Motion Summary Judgment
http://www.scribd.com/doc/99956109/Masterfile-vs-Chaga-Mary-Beth-Peters-Declaration-Opposing-Defendants-Motion-Summary-Judgment
I will be doing my own assessment of this case soon. Suffice it to say, this was tremendously damaging to the reputations of PACA, Nancy Wolff, the Copyright Office, and Masterfile.
They lost on registration issues that were so basic and specifically spelled out in the Copyright Law, it is really embarrassing. This should never have gone in front of the judge.
Masterfile tried to scare Chaga into submission and when that didn't work, Masterfile tried to push the issue except that they were demolished over lazy, overly-simplified registration instructions that Nancy Wolff gave to PACA members.
Those PACA members, including Masterfile, that blindly followed Nancy's advice have been handed a big dish of bittermelon.
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Thanks a lot for the case files, Matt.
I'll have to take some time and read those over.
Things don't look good for "Uncle" Glen Carner, "red-headed stepchild" Tylor and H.A.N. et al.
Most should recall that Tylor has his evidence registered in a compilation just as Masterfile has.
S.G.
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Thanks a lot for the case files, Matt.
I'll have to take some time and read those over.
Things don't look good for "Uncle" Glen Carner, "red-headed stepchild" Tylor and H.A.N. et al.
Most should recall that Tylor has his evidence registered in a compilation just as Masterfile has.
S.G.
Just when Uncle Glen starts to recede into the back of my brain, someone mentions him, and the missing him starts all over again..
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This is wonderful news from where I sit, but I keep having a perturbing thought.
My understanding of copyright law (which I hope is wrong) is that they can properly file the registration paperwork and then go back and pursue the cases again (if the 3 year statute of limitations has not run). Filing the paperwork is, after all, a clerical task.
If they are serious about being trolls, wouldn't they do this? Or is there something I am missing about why they didn't properly file the paperwork in the first place? Was it laziness or are they missing something important to the registration process?
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Good point, Stinger.
Righthaven actually tried that.
They were unsuccessful, however:
"Judge Dawson also addresses the "amended agreement" that Righthaven made with Stephens Media on May 9th in its attempt to get around the sham transfer, but the judge doesn't buy it (Judge Pro and Judge Hunt both expressed skepticism about this amendment), noting that it only matters what the facts were when the complaint was filed, and this attempt to change the rules later in the game is not allowed:"
"This amendment, however, cannot create standing because “[t]he existence of federal jurisdiction ordinarily depends on the facts as they exist when the complaint was filed.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 571 n.4 (1992) (quoting Newman-Green, Inc. v. Alfonzo- Larrain, 490 U.S. 826, 830 (1989)) (emphasis in Lujan). Although a court may allow parties to amend defective allegations of jurisdiction, it may not allow the parties to amend the facts themselves. Newman- Green, 490 U.S. at 830. As an example, a party who misstates his domicile may amend to correctly state it. This is an amendment of the allegation. However, that party is not permitted to subsequently move in order to change his domicile and amend accordingly. This would be an amendment of the jurisdictional facts, which is not allowed. See id. Here, Plaintiff and Stephens Media attempt to impermissibly amend the facts to manufacture standing. Therefore, the Court shall not consider the amended language of the SAA, but the actual assignment and language of the SAA as it existed at the time the complaint was filed."
http://www.techdirt.com/articles/20110713/23203415083/righthaven-loses-again-yes-again-with-another-judge-immediately-refiles-lawsuit.shtml
S.G.
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Two things MF could do: (1) MF may appeal (likely); (2) MF could now properly register each and every picture individually (provided it has proper assignments from the photographers) and file a new lawsuit provided it's still within three years of the alleged infringement. However, since the pictures were not properly registered at the time of the alleged infringement, MF would only be able to get its "actual damages" and would not be able to get attorney's fees. This makes it unlikely that they will pursue the claim in this fashion. This is especially so since there were a number of other substantive defenses we were prepared to raise in the event the court allowed the lawsuit to proceed. I suspect they will put all their eggs into the appeal basket and I expect that like the plaintiffs in Alaska Stock, they will bring out all the guns and get supporting briefs from the Dept of Justice, and many others.
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Two things MF could do: (1) MF may appeal (likely); (2) MF could now properly register each and every picture individually (provided it has proper assignments from the photographers) and file a new lawsuit provided it's still within three years of the alleged infringement. However, since the pictures were not properly registered at the time of the alleged infringement, MF would only be able to get its "actual damages" and would not be able to get attorney's fees. This makes it unlikely that they will pursue the claim in this fashion. This is especially so since there were a number of other substantive defenses we were prepared to raise in the event the court allowed the lawsuit to proceed. I suspect they will put all their eggs into the appeal basket and I expect that like the plaintiffs in Alaska Stock, they will bring out all the guns and get supporting briefs from the Dept of Justice, and many others.
and I suspect, you'll beat them silly AGAIN! It's not whom has the bigger guns that wins, it's he who aims more accurately..
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It's always nice to see the "Jedi Master" Oscar chime in here.
The young padawans are listening intently, I'm sure.
Two things MF could do: (1) MF may appeal (likely); (2) MF could now properly register each and every picture individually (provided it has proper assignments from the photographers) and file a new lawsuit provided it's still within three years of the alleged infringement. However, since the pictures were not properly registered at the time of the alleged infringement, MF would only be able to get its "actual damages" and would not be able to get attorney's fees. This makes it unlikely that they will pursue the claim in this fashion. This is especially so since there were a number of other substantive defenses we were prepared to raise in the event the court allowed the lawsuit to proceed. I suspect they will put all their eggs into the appeal basket and I expect that like the plaintiffs in Alaska Stock, they will bring out all the guns and get supporting briefs from the Dept of Justice, and many others.
Logical arguments can be made for or against the validity of registering images in bulk.
But, by and large, the courts are not favoring this method of registration, and I think that it's just a matter of time before it's simply accepted as universally "invalid".
Bulk registration has been plagued with problems as it's often used to strategically hide different kinds of deficiencies pertaining to legal "ownership".
In cases wherein disputes cannot be resolved "amicably" (I hear people snickering, by the way), the courts end up having to sort out the entire mess.
Given the astonishingly high settlements demanded by copyright extortionists, the public at large and indeed the justice system deserve much more proof than bulk registrations provide,
which are very cursory at the best of times.
The concept of "I'm sure that it's in there somewhere... trust me... and send me ten thousand dollars by the way" is laughable.
I'm reminded of the comment about this being an "issue of substantial public importance, given the size and scope of the plaintiff’s alleged image collections",
made by the judge in the Getty vs Advernet" case.
I'm quite willing to bet that there are some big problems in MF's bulk registration.
But, I suspect that MF will try and have another go at it in the hope of simply finding a judge that will simply render a different verdict.
However, if MF loses on appeal, then that sets a very strong precedent against faulty registrations in that court circuit. So, the stakes are quite high overall.
Of course, this always brings up the topic of "damages".
The trend among corporations appears to be based on a model created to offset not only the losses created by infringements, but also all other losses due to all other causes,
plus a tidy profit margin tacked on.
That doesn't sound like a realistic assessment of damages, if you ask me.
The trend among private individuals seems engineered to place them in the six-figures income bracket, even if their creative content is so lacking in value as to make them homeless,
if they had to rely on actual sales.
Like I said before pertaining to copyright extortionists: "Get a haircut and get a real job".
S.G.
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Today (July 18th, after court decision being discussed) I received a follow-up threat email from Masterfile. I'm wondering if this is improper or worse in light of the court decision that was issued within 10 days of my initial notification.
The letter warns that I have not responded within 10 days to the first letter by paying many thousands of dollars, acknowledging that I did remove the image immediately. It is a claim of infringement of a single image the size of a thumbnail, about 70x70 pixels, that appears to have been derived from one of their catalog images without my knowledge.
The letter threatens that if I don't accept the retroactive license and pay many thousands of dollars within 5 days they will rescind "that retroactive license and initiate a legal action for copyright infringement" and states that "pursuant to the Copyright Act, civil remedies for this infringement include compensatory, statutory and punitive damages, injunctive relief, delivery of destruction of infringing copies, and if litigation is involved, recovery of legal costs. Copyright infringements are subject to statutory damages up to $30,000 per work infringed."
I have not yet responded because I've been busy educating myself on this web site. But it does seem that the court decision of this thread would preclude their ability to seek statutory damages and legal costs at least. Do I understand that correctly? And if so, isn't continuing to make that threat improper? or even contemptuous of the decision? Any thoughts?
I was considering offering a market value sum for a retroactive license to resolve the matter, but this heavy-handed additional threat, based on legal leverage they now might know they do not have, makes me rethink even that.
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the next step they did to me was send it over to NCS and try to get me to pay from there. Now this is only a claim not a debt so that is a fail on their part. Read up on here and get educated. Dont give in to them but read and get educated. You can also have oscar fight for you if you wish. Right now I'm still mad and will be fighting back. I will not go down with out taking some others down with me.
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Jstar, first off let me welcome you to the forums and I think you are doing the right thing by continuing to read up in the forums as there is a wealth of information contained in them. As far as the recent court ruling pertaining to master file it certainly will make it harder for them to pursue legal actions against their letter recipients providing the image in question is part of a bulk or series registration.
I think your first step should be attempting to find out if the image in question masterfile has sent you a letter over is registered with the copyright office as a single image, a series of images or registered at all. If you can find out this information that will help guide you in your next steps. If it is registered as a series or group of images they will have a very hard time pursuing legal action against you. Regardless of how the image is registered they can still harass you through letters, NCS and attorneys letters.
You also need to decide the level of involvement you are willing to put into this. You can read and study the forms and educate yourself and deal with them directly or if you feel you need more information and advice than what can be gleaned here on the form I suggested Eli support phone call with Matthew Chan, this maybe had for a minimum $50 donation to Eli. As every situation is different and unique, Matthew can offer insight and suggestions to your situation. The other option is if you just want it to be handled and not hear from them anymore would be using Oscar's defense letter program, you can read about both at the following link:
http://www.extortionletterinfo.com/forum/getty-images-letter-forum/getting-help-with-your-extortion-letter/
I myself have chosen the route of fighting Getty on my own, while I have consulted with and retained a local IP attorney about my case I have him there mainly for backup in case Getty should be foolhardy enough to attempt to take me to court. If you should decide to fight this on your own I recommend planning out how you'll respond to each step of the process and having a plan ready to go and being prepared so you know exactly what you will do at each stage.
Keep reading and educating yourself, ask questions of the form and keep us posted on what you decide to do.
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It's important to note that MF's recent court loss would not prevent them from filing another lawsuit in the future.
However, the more that such cases are lost in court, the weaker their legal standing becomes in similar lawsuits (all things being equal).
Furthermore, one should not automatically assume that all of MF's collection is registered incorrectly.
Much of it apparently is, but it's important to do some digging and research.
S.G.
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Oscar submitted the latest documents regarding the Masterfile vs. Chaga case. It has been uploaded to ELI Document Library on Scribd. These are practically mandatory reading and basically takes the wind out of Masterfile's nasty reputation of filing lawsuits. If Masterfile hadn't stupidly tried to claim $6 million, maybe Chaga and Oscar wouldn't have had to embarrass the entire stock photo industry most notably PACA, Nancy Wolff, Steve Weinberg, and Masterfile.
Transcript of Proceedings
http://www.scribd.com/doc/99957273/Masterfile-vs-Chaga-Transcript-of-Proceedings-June-18-2012
Courts Finding of Facts
http://www.scribd.com/doc/102659307/Masterfile-vs-Chaga-Court-s-Findings-of-Facts
Entered Judgment
http://www.scribd.com/doc/102659308/Masterfile-vs-Chaga-Entered-Judgment
Report to U.S. Copyright Office
http://www.scribd.com/doc/102659309/Masterfile-vs-Chaga-Report-to-Copyright-Office-After-Judgment
These documents are very good reading and quite a brutal and explicit setback to those who followed Attorney Nancy Wolff's and PACA's "shortcut" and circumvention copyright registration advice. Every member of PACA who followed Nancy's advice has found out the hard way her advice did not hold up.
The stock photo companies are more interested in assembling huge collections of images to control the inventory and artificially inflate their values than to follow rules to be eligible for copyright infringement claims.
The Court's Finding of Facts listed "multiple deficiencies" and that NONE of Masterfile's copyright registrations complied with Section 409 of the Copyright Act. NONE!!!!!
You can find this scathing list of Masterfile's deficiencies in the "Conclusions of Law" section. This really gives a huge black eye to Masterfile, Nancy Wolff, Steve Weinberg, and PACA.
Oscar seems certain they will appeal this case but they have to know that this will be an uphill battle. And if they lose or not granted the opportunity for an appeal, it's over for the copyright extortion business from the legal perspective.
Nevertheless, the legally uninformed, ignorant, and spineless will continue to stupidly pay up but that is besides the point.
I have so much to say regarding the mindset of the stock photography industry and many photographers. This entitlement mentality they have regarding how they conduct business with their images will put them under. There will soon come a day that most images will become nearly worthless if they don't start "getting it" in their heads that doing it the way they are doing it will continue to drive customers away.
They are one of the few businesses I know that continue to make enemies by the hundreds each week because they are too stupid to see the big picture. The valuation of all the stock photo companies just took a major hit this year with the onslaught of unfavorable legal rulings against the stock photo industry and copyright trolls in general.
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Thanks for sharing these with us Matthew. This is good stuff and I agree with you about the stock photo industry not getting it, there day of reckoning is coming very soon.
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Those documents made wonderful reading this Sunday morning. Thanks for posting them.
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I haven't had a chance to read the doc's as yet, but I wanted to say thanks for providing them.
MF is/was one of the really aggressive companies, so it's always of interest.
Long term, I don't think that there's a future for these companies in copyright extortion.
It just isn't working.
S.G.
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Just out of curiosity, is it considered legal showboating, when the prevailing attorney (in this case Oscar) doesn't make a court appearance and still wins? Is that like doing a dance after scoring a touchdown, or taunting an opponent after slam dunking a basketball in his face?
All kidding aside Oscar, way to go! A big win for the little guys.
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Stinger: If I got this result in absentia imagine what would have happened if I had shown up! In all seriousness, however, I was not going to spend the client's time and money to fly to California for a five minute appearance. Our local counsel also informed me that Judge Real relies on the court papers and that an appearance is only necessary if you have something new to add.
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I say well done. Anytime you can win by spending the Troll's time and money while not spending too much of your own, you are creating real value.
In reading the transcript, it appeared that Materfile's attorney was trying to take advantage of the fact that you weren't present, and they still lost. I think that is worthy of a little trash talking - maybe not in the legal community - but certainly here on ELI.
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I believe Oscar has said that ELI is a "rough and tumble" environment. We can engage in an ELI Happy Dance if we want to although it would be unseemly in lawyer circles.
ELI makes no bones about being anything close to a "lawyerly" forum. Having said that, we take victories wherever we can. And in this case, if that means a legal victory, we can savor in it.
Remember folks, fighting on the legal front is certainly an important one. Unquestionably and undeniably, that is headed up by Oscar. He may not be here on a daily basis but make no mistake his presence continues to resonate throughout nearly all of ELI's activities. Likewise, the ELI Community can continue to assist him "on the ground" by gathering and reporting on new extortion letters.
Don't ever let the copyright extortionists lure you into the trap of arguing/fighting on their terms even if by chance they manage to score some kind of legal victory. I know I won't.
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Well said Matthew and thank you Oscar for all you do even though we make you "cringe" from time to time. :)
I believe Oscar has said that ELI is a "rough and tumble" environment. We can engage in an ELI Happy Dance if we want to although it would be unseemly in lawyer circles.
ELI makes no bones about being anything closes to a "lawyerly" forum. Having said that, we take victories wherever we can. And in this case, if that means a legal victory, we can savor in it.
Remember folks, fighting on the legal front is certainly an important one. Unquestionably and undeniably, that is headed up by Oscar. He may not be here on a daily basis but make no mistake his presence continues to resonate throughout nearly all of ELI's activities. Likewise, the ELI Community can continue to assist him "on the ground" by gathering and reporting on new extortion letters.
Don't ever let the copyright extortionists lure you into the trap of arguing/fighting on their terms even if by chance they manage to score some kind of legal victory. I know I won't.
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Don't worry Greg. By last count, it was running about one cringe per ten bouts of laughter
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Don't worry Greg. By last count, it was running about one cringe per ten bouts of laughter
I could probably even this ratio out a bit if you'd like! ::)
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This is an unexpected ELI news announcement relating to Oscar Michelen's recent actions and role in the Masterfile vs. Chaga case.
Certainly, it has been a huge legal victory for victims of copyright extortionists but Oscar's legal actions has created unintended consequences that I find quite disturbing and disruptive to ELI. It could severely affect ELI's standing within the Google's search engine. I lay the blame entirely on him.
Because of the massive legal defeat of Masterfile, Oscar has inadvertently forced an ELI name change here of "Masterfile Corporation" to "MasterFail Corporation". Unless there is a successful appeal, there is a good chance going forward we will be using the "MasterFail" name thereby mucking up ELI's standing in the Google search engine. MasterFail is certainly much more accurate and appropriate for the time being.
We hope that MasterFail Corporation has a short, unprofitable life and is put out of its economic misery.
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Hahaha! You had me going there for just a minute wondering what in the world had happened. However this could be an opportunity Eli could use to help raise MasterFail in the Google search engines. We should do all we can to help restore the link between the two names so they appear together in Google searches ;D
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"Masterfail".
(http://magazine.deellas.com/images/get/1750/275-x/0-77/noticia/1750.jpg)
S.G.
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It looks as though Masterfail, uh I mean Masterfile has appealed their lawsuit against Chaga. A new filing took place September 06, 2012.
http://dockets.justia.com/search?q=Masterfile+Corporation
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Great find! A lot is riding on this case for Masterfile, and their industry.
I wonder if their strategy will be different, or are they simply hoping for a different judge with a different opinion?
I guess that many observers were expecting this. Masterfile was holding off on pursuing other cases, it seemed.
Very nice to see that Bekka's still here!!
S.G.
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Heres is a quote by Nancy Wolff of PACA and her thoughts on the Masterfile loss.
"In support of Masterfile's copyright infringement case against Chaga International PACA attorney Nancy E. Wolff prepared a declaration explaining the purpose of the registrations and the meetings on behalf of PACA with the Copyright Office. The defendants had moved to dismiss the action based on the validity of the registrations. In addition Marybeth Peters, the former register prepared a declaration in support of Masterfile and its registrations.
Unfortunately, Judge Real disregarded the declarations and ruled against Masterfile. Apparently this judge has a reputation for being anti-plaintiff and dismissing cases. He is frequently reversed. Relying on the prior cases of Alaska Stock and Bean he gave no deference to the Copyright Office. Masterfile has filed an appeal and is awaiting the 9th circuit decision in Alaska Stock v. Houghton Mifflin. If the 9th Circuit upholds the registrations in Alaska Stock, these lower court decisions from the 9th Circuit will be overturned.
Meanwhile, these declarations are available and may be helpful to other members in arguing against these strings of lower court rulings invalidating the group copyright registrations."
http://www.pacaoffice.org/membersOnly/updateArchive/120717.shtml
Looks to me that she's hoping fr a reversal, however with Alaska Stock being in bankruptcy, it looks like they maybe in for a long wait.
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Thanks S.G. I always drop in from time to time and catch up with what is going on in the copyright trolling industry. This forum will always hold a special place in my heart. It was this forum that educated and helped me formulate a plan to fight back against my own letter from Masterfile. I am not out of the woods yet, but I don't worry about it anymore. I am a fighter and will fight to the bitter end.
Take care all, and keep up the great work!
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Good info from Buddhapi!!
Wolff's assertion that "this judge has a reputation for being anti-plaintiff and dismissing cases" seems a bit childish.
The stock photo industry trolls are demanding very high settlements en-masse.
I don't think that the public, the justice system, and content owners would be well served by a copyright system such as that which the trolls desire.
Such a system would be too informal and simplistic to properly answer legal questions regarding standing and ownership.
When defendants are sued for many thousands, and sometimes millions of dollars, statements made by the trolls to the effect of "the photos are in there somewhere" and "we don't need signed contracts" are simply not acceptable.
S.G.
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If the police stops you in your brand new car and ask for your paperwork and you tell them : "It is somewhere and I am not sure if I have signed contract with my car dealer"
I do not think that they will let you go any further either ;D
Khan
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I was hoping someone (Oscar?) could provide an update in regard to MF's recent actions (if any) involving these types of cases. Have they initiated any litigation where the allegedly infringed image was part of a bulk registration since the Chaga decision? Have they been initiating more/less litigation in general since the Chaga ruling?
Just curious if their strategy and/or tactics have changed recently.
Thanks!
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As Rosebud, I too am looking for any updates to this litigation. I just received my extortion letter from MF the other day, and the image at issue is part of a group registration from 2003. I would like to know if there have been any follow-up decisions with respect to the invalidity and/or noncompliance of group registrations.
Of course, I removed this image immediately upon being informed of MF's letter. I am a once-in-a-blue-moon website designer with very serious medical issues and am currently going into hock just to pay for hospitalizations, specialists, diagnostics, meds, etc. With literally $5 in a savings account and living on a shoestring, I am not in a position to pay MF the requested sum, although I verbally agreed to do so in increments over 6 months. They are supposed to be emailing me their "settlement letter". However, after getting over the initial shock and finding this site's forums, I am now wanting to send them a letter requesting a copy of the assignment from the image author and the application made to the Copyright Office for this particular image. But I would also like to have current ammunition with respect to their group registrations and whether they are still deemed invalid by the court in the instant matter.
Thanks so much for any feedback you can give.
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Addy, given your backstory ( which totally suckss) I would say you are pretty much judgement proof anyway..If you pay them nothing, and they decide to sue you and they win...you have no means to pay them...so actually they lose..don't lose sleep over these dick heads at Masterfile, your health needs to come first!
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Addy, given your backstory ( which totally suckss) I would say you are pretty much judgement proof anyway..If you pay them nothing, and they decide to sue you and they win...you have no means to pay them...so actually they lose..don't lose sleep over these dick heads at Masterfile, your health needs to come first!
Thank you, Robert. I did lose sleep and could not eat after the initial notification. Not good for MS and heart disease, and the stress of it has taken its toll already. But I want to ensure I do things correctly, especially since I don't want the company whose website the image was used for caught up in Masterfile's extortion net. They initially received MF's letter, and I told them to pass it to me and I would take care of it. I would like to at least write to MF before their 10 day time limit expires so that it doesn't look as if I'm simply ignoring it. If it does go to court, I would like to have it clear from correspondence that I tried to resolve the issue.
The letter they sent demanded $3880 for an image I used for less than one month that has absolutely no copyright info linked to it in the EXIF info and no watermark to give any indication that there would be any issue with using it. I always check images before using them and, if they are copyrighted, I either do not use them or I pay for them. Had I known this image was copyrighted, I certainly would not have paid the exorbitant fee to use it and would have used a royalty free image from elsewhere.
After I spoke with the MF agent, they lowered it to $970, the amount they usually charge for using the image for "up to one month" on their site. They want me to make monthly payments for 7 months. However, even this lower amount is far outside my ability to pay right now, considering all the medical bills I am dealing with. I require constant monitoring by my specialists and need to keep current with them.
Frankly, since the initial shock has now worn off, I am angry with the fact that they are attempting to bully me into making payments I simply cannot make right now. I immediately removed the offending image and that should be the end of it. But after reading this forum, I see that they have quite a history of bamboozling people. I may be disabled, but I'm not an idiot and am very glad to have found this site with such helpful information.
I have set up an account with Pacer (still pending authorization) to check for a recent docket on the Chaga case and see if there have been any further developments with respect to the validity of group registrations. But if anyone here has any immediate answers on that front, I would so appreciate hearing about it.
Thank you, again for your kind words of support, Robert. They are much appreciated.
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a couple of notes / thoughts
1. The 10 day time frame is largely a scare tactic, to make you do something right away.
2. IF this does go to court, they will pursue the end user (your client)
3. If you do not pay them, they will simply remove you from the equation, and pursue your client.
4. Just because there is no watermark or EXIF info, means nothing copyright exists at the moment of creation, having said this, you may want to be proactive in removing any and all images you did not purchase, and that you don't have receipts / licenses for. As you are inviting more letters from other sources. Simply assuming images are safe and would pose no issues, is risky at best.
5. While PACER is a great tool, use with caution as it is very easy to generate a nice bill ( I speak from experience here)
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Thanks again, Robert. Except for this one image, there are no others that I have not paid for (or downloaded when it was clearly stated it was free, as in 123rf.com free images), or owned by the client, or created myself. This is a first for me, and will be the last.
I agree with you about the judicious use of PACER (no pun intended). I just pulled up the docket on the Chaga appeal (10 cents), and currently they are still having mediation assessment telephone conferences. The next one is scheduled for 6/25/13.
I am upset to learn that they will go after the client if I fail to pay. That would reduce my income if I lose the client over this. Now I'm back to a state of confusion over how to handle it. :-\
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You might want to look into Oscar's letter program. It costs $200 but your client (and you) will no longer be contacted by them. All further collection attempts would need to got to Oscar. It is not a guarantee that they will not sue. But I don't believe it has happened yet.
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You might want to look into Oscar's letter program. It costs $200 but your client (and you) will no longer be contacted by them. All further collection attempts would need to got to Oscar. It is not a guarantee that they will not sue. But I don't believe it has happened yet.
THIS!!! and you keep your client happy, and can rest easy for the next 3 years...
123RF.com has "free" images??
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You might want to look into Oscar's letter program. It costs $200 but your client (and you) will no longer be contacted by them. All further collection attempts would need to got to Oscar. It is not a guarantee that they will not sue. But I don't believe it has happened yet.
THIS!!! and you keep your client happy, and can rest easy for the next 3 years...
123RF.com has "free" images??
What happens after 3 years? Forgive my ignorance. I've been reading the forums as fast as I can but am not savvy just yet.
Re: 123rf.com free images. Yes indeed!! Go to http://www.123rf.com/browsefreeimages.php (http://www.123rf.com/browsefreeimages.php) Many artists put their images up for free downloads. They are mainly 72dpi, but that's fine for web use. :) I spend some time there a couple of times a month and grab anything I think may be useful in the future (foods, people, holiday images).
btw ... I got a chuckle out of a blog from the author of the dastardly image in my case. Someone asked him if he gets consent from people in cafes before he paints them into his scenes. He said,
"I have never asked anyone's permission. If someone looks uncomfortable I will paint the areas around them first and wait till someone else comes along. The cafe seems somehow like a stage to me. When the right person shows I paint them in place. My paintings usually are not so detailed that a person would say 'that is me' so I think I'm pretty safe there."
Really?? I find that wonderfully hypocritical. One set of rules for the artist, and one set of rules for everyone else.
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3yrs is the statute of limitations, after this they cannot file suit..
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I was interested in 123rf's "free" images, from their TOS / EULA:
7. 123RF and the Content are made available to you "AS IS," "AS AVAILABLE," and "WITH ALL FAULTS." 123RF, its employees, directors, and officers, and anyone else associated with 123RF disclaims, to the fullest extent permitted by law, any and all warranties, express or implied, including without limitation warranties of merchantability, fitness for a particular purpose, non infringement, or that your usage of 123RF will be uninterrupted, error free of computer viruses or other damaging materials. When you access and acquire Content, you do so at your risk. 123RF, its employees and officers, and anyone else acting on behalf of 123RF also disclaims any and all common-law duties, including without limitation duties of reasonable care and workmanlike effort. 123RF, its employees, directors, and officers, and anyone acting on behalf of 123RF make no representation or warranty as to your right to use any individual's name, likeness, and/or image appearing in the Content without first obtaining appropriate rights from such individual.
(a) You understand and acknowledge that neither 123RF, its employees, directors, and officers, nor anyone acting on behalf of the 123RF website or sites has made any representation or warranty that Your use of Content will not infringe or violate the trademark rights of any third party, or constitute a false designation of origin or any other form of unfair competition, and
(b) You understand that You should seek competent counsel before using Content on or in connection with any goods or services or for any other commercial purposes.
The bolded areas were highlighted by me...yup the images are indeed "FREE", but you use that at your own risk, if they infringe it's your problem, and it is probably a good idea to "seek competent council" before using any content......
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So, in essence, to be safe I should only use images I have created from scratch and copyrighted ... or get out of the web design arena and let someone else have the worry. What a world. Even if you pay for an image, you can't be guaranteed safe use? I remember when artists couldn't wait to get exposure for their works. Now, it's just a greedy racket.
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So, in essence, to be safe I should only use images I have created from scratch and copyrighted ... or get out of the web design arena and let someone else have the worry. What a world. Even if you pay for an image, you can't be guaranteed safe use? I remember when artists couldn't wait to get exposure for their works. Now, it's just a greedy racket.
Not what I said.. You only use images you create, or purchase images, and keep records of everything, and be sure to read and understand the terms of use.. Getting out of the web arena is completley your choice, I never suggested such..and I'm not getting out because of some greedy trolls, by them pursuing me has cost them dozens of customers that will never purchase from them.
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Here's a little story that involves 123rf.com
Almost one year ago, I found a website using one of my photographs, with a byline credit "Pic retrieved from anothersite.com"; I performed a WHOIS search, got the site admins email address and sent an infringement notification, seeking settlement for the lost license fee.
At the same time, I also sent a near identical email to the anothersite.com, as they were also infringing.
A little over a day after I had emailed the first web admin, he responded saying that he had gotten my shot from 123rf.com, going so far as to include the URL where I could find my shot on 123rf
I quizzed him a bit on this point, as if he had indeed gotten it from that image library, why did the credit line say "Image retrieved from anothersite.com"; his explanation was that the admin for anothersite.com had told him that they'd gotten it from 123rf.com.
In the intervening period, the site admin from anothersite.com had repled to my email and agreed to settle for the lost license fee.
Still with me? Good.
So I got back to the admin of the first site and informed him that, since he'd licensed the photograph from 123rf.com, I'd need a copy of that license so I could provide it to the authorities, as an act of fraud had taken place i.e. someone had uploaded my shot to 123rf.com with intent to fraudulently obtain income from it.
I also contacted 123rf.com at this time to get the ID of whomever had uploaded the shot, informing them that they would likely be contacted by both my copyright attorney and such law enforcement agencies as woudl be necessary to investigate the fraud.
I informed the site admin that I was suspending my demand for payment of my lost license fee pending the outcome of any investigation that law enforcement would undertake; I reiterated my request for him to supply me with any information or records from 123rf.com that would help in this regard.
This is where it took a turn for the surreal.
After a little back-and-forth emailing with the admins at 123rf.com, I got this as my final response
"We are unable to find out who was the contributor who has stolen your image; this being said, we would require the contributor's Username from the client, but since the image has already been removed from our server, we are unable to investigate any further."
Also, despite informing the site admin that I was suspending my infringement claim pending what might turn into a criminal investigation, he volunteered to pay my license fee of $121.00.. in fact, the funds were in my PayPal account before I'd even read his message.
What I found most odd is that, in searching 123rf.com, there were no other images of mine on the site - not from the same event, or any other shots I'd taken. All that had been there was the one shot that a site admin had claimed to have licensed from them.
More troubling still is that 123rf.com were unable to provide me with any information as to how my shot wound up on their site in the first place.
Absent any hard data for me to put toward law enforcement - and since both sites had settled with me for the licenses that were due - I put the issue on the back burner... though I still periodically check 123rf.com to ensure none of my shots are up there.
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"law enforcement agencies"?
What the hell are you on about now?
So, they sent over the "bobbies" with their little helmets and billy clubs to your "flat" in Croydon ?
Next, they ran around like keystone cops to find out who "stole" your snapshot?
Holy shit. Get a life. Also, post the correspondence here so that we can verify your story.
S.G.
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Now, Now Soylent, we all know that copyright infringement is a criminal offense...
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Exactly. I'm glad that GvD is posting here, though.
Because I'm glad to have an example of what the problem in the industry really is.
In fact, I'm going to be here every day reading GvD's postings, and exposing his/her lies.
That's the way it's going to be from now on.
S.G.
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wasn't it that fucktard Timothy McCormack that threatened jail time in one of his extortion letters?? or maybe i'm confusing Seattle Attorney and ass hat Timothy B. McCormack with one of the other douche bag trolls..
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I think that it was some other troll attorney... I recall that it was a huge shitstorm.
He was reported to the state bar, I think. I don't recall the name, but we haven't heard from him since.
Long time ELI friends will also remember that Brandon Sand went "full retard" in his demand letters too.
But, Timmy is the king of implying that the maximum statutory damages apply to de minimis infringements.
He also cites case law that has no relation to these kind of infringements.
I'm waiting for some idiot to come on here and say that it's a "felony" or some other milarkee.
Anyway, the "rights managed" sector is dying now that there's so much selection in the royalty free market.
I say, "good riddance".
S.G.
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Robert - My last comment wasn't directed at your commentary. I was venting in general ... tossing my feelings into the ether. I'm just ticked off. It should be enough to cease and desist, since it's a show of good faith. But they want their blood money. btw ... the question in my comment was completely rhetorical.
I agree with you about artists and image houses losing customers. I know I will never use this particular artist's work again, and will never use MF in the future.
We are all artists in our own right. Graphic design, web design, photography, drawing, writing, cooking, sewing, music, etc. We put our heart and soul into what we do and, for the most part, it brings us joy and fulfillment. And, if we choose, it can bring in some money. But to bastardize it by mercilessly fleecing people with outrageous fees for unintended mishaps ... well, as you said, goodbye to the "rights managed" sector.
SG - Loved your reply to DvG. lol
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I think that it was some other troll attorney... I recall that it was a huge shitstorm.
He was reported to the state bar, I think. I don't recall the name, but we haven't heard from him since.
Long time ELI friends will also remember that Brandon Sand went "full retard" in his demand letters too.
But, Timmy is the king of implying that the maximum statutory damages apply to de minimis infringements.
He also cites case law that has no relation to these kind of infringements.
I'm waiting for some idiot to come on here and say that it's a "felony" or some other milarkee.
Anyway, the "rights managed" sector is dying now that there's so much selection in the royalty free market.
I say, "good riddance".
S.G.
wasn't it that fucktard Timothy McCormack that threatened jail time in one of his extortion letters?? or maybe i'm confusing Seattle Attorney and ass hat Timothy B. McCormack with one of the other douche bag trolls..
Memory Lane...
http://www.extortionletterinfo.com/forum/getty-images-letter-forum/looking-for-more-info-on-actual-and-expected-results-from-defense-letter-program/msg7648/#msg7648
It was "Brandon Sand".
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"law enforcement agencies"?
What the hell are you on about now?
You obviously missed (or ignored) the part where the site admin claimed to have gotten my photograph from 123rf.com.
Now, I don't know about you, but uploading the copyright work of others, passing it off as your own with the intent to earn revenue from licensing of said work constitutes fraud... and, in this instance, there were two people that would have been defrauded.
1. The website admin whom supposedly licensed the photograph from 123rf.com
2. Myself
Had 123rf actually been able to supply me with information as to which of their users had uploaded the photograph in question, you're damn right I would have explored all options open to my by law, up to an including criminal charges being brought if at all possible.
Like I said, I found it troubling that 123rf was unable to supply me with any information as to whom had uploaded the photograph, and it was also more than a little odd that the site admin paid my licensing fee when I said I was suspending my claim against them pending the outcome of any investigation.
You think I'm "the problem" with the industry? Take your blinkers off, fella, and have a read through the first post I made to this site to better understand my position.
If you mentally want to lump me in with the stock agencies whose practices are often less than helpful to other creatives, go right ahead - just remember that I'm self-employed, register all my own works in a timely manner and only turn matters over to my attorney when
a) Attempts to negotiate for my lost license fee are rebuffed, or
b) The infringer is a corporate entity and/or headed up by or employs media professionals (i.e. people whom should know about copyrights and have no excuse to infringe)
If I think that someone is using my work within the bounds of fair use, I contact them and ask them to put in a proper byline credit and copyright notice if they haven't already done so.
If someone is using my work outwith the bounds of fair use, I'll seek my lost license fee from them and hopefully convert someone whom was probably unaware of image rights into a person who better understands and respects the work of creatives.
If you want to think that I'm "trolling", go ahead - I can't alter your opinion and, frankly, all it does is leave me disappointed that you're apparently so keen to have such a black-and-white view of people.
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We are all artists in our own right. Graphic design, web design, photography, drawing, writing, cooking, sewing, music, etc. We put our heart and soul into what we do and, for the most part, it brings us joy and fulfillment. And, if we choose, it can bring in some money.
I understand the above and agree.. but the above also frames the following.
But to bastardize it by mercilessly fleecing people with outrageous fees for unintended mishaps ... well, as you said, goodbye to the "rights managed" sector.
Now this is where you and I are likely going to have a difference of opinion.
When I find my work being used by another creative - especially if that person has had a college or university education in their field and earns (or is attempting to earn) a living from their creativity, then I approach those infringements with a far more firm tone than I would an "inadvertent" use on a small scale blog that has no advertising and/or doesn't solicit income of any kind.
As creatives, we all pour our heart and soul into what we do, so we should all have way more respect for the work of other creatives... which means we should stop and think as to whether we have the permission - never mind the right - to use or include the work of others with our own.
Believe me, I've had other creatives say that they didn't realise that they were doing anything wrong and, worse still, I've had a select few point-blank insist that they were in the right.
It frustrates me no end as, really, the last thing I want to do is go through the courts but I'm often left with no other alternative. At the time of typing this message, I have about a dozen cases in which I'm on the brink of filing suit over. That's going to be $4,800 in filing fees alone, and perhaps a few hundred dollars more if I wind up needing a process server for any of those instances. Having that sort of money fly out the door is not something I do lightly.
To me, copyrights are about respect and common decency. If a person has that creative spark within then that drives them to write, cook, sew, knit, design or whatever - then they should damn well be respectful of the efforts as others, since they are no less valid.
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Bro, if I wanted smoke blown up my ass, I'd be at home with a cigar and a length of hose.
"Fraud" is covered under criminal statutes. De minimis infringements are a matter of the civil courts.
However, please feel free to post sections of US law that deal with such infringements in terms of criminal fraud, if you feel that they exist.
I don't see people as being of a "black and white" nature.
However, upon reading some of your latest posts, I found them astonishingly misleading.
If even 5 percent of what you wrote was correct, you may have gotten some leeway.
So, you got lumped in with the trolls.
Hell, Getty couldn't even get actual damages in one of its recent big court losses because their filing system was so flawed.
Not 200 dollars, not 10 dollars, nothing. Makes me wonder if it was intentionally flawed.
You make it sound as if you're experienced in pursuing infringements.
However, you seem to know very little (if anything) of the laws that govern such dealings.
You're either "blowing smoke", or you're intentionally misleading people in the hopes that they'll take your bad advice and you'll gain from that.
S.G.
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However, please feel free to post sections of US law that deal with such infringements in terms of criminal fraud, if you feel that they exist.
Here you go
http://www.law.cornell.edu/uscode/text/17/506#a_1_B
And here are the potential penalties
http://www.law.cornell.edu/uscode/text/18/2319
If anyone uploads my own works to a photo library in an attempt to profit from them... like I said, I'd look at all legal measures.
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The piece of law that you listed doesn't apply to de minimis infringements such as we deal with here.
It's intended to deal only with large, sophisticated businesses whose main source of revenue is mass infringement of copyrights.
That is, you've listed statutes that focus on entities such as Megaupload or Demonoid, and as such they don't apply to individual infringements of images.
Criminal fraud doesn't apply at all in your case.
That's why YOU have to sue in regard to infringements of YOUR content.
You already admitted that you will have to pay "over $4800 in filing fees alone".
If it was a criminal matter, you could simply phone the police as you suggested, and you'd file a report, and the police would lead the investigation.
But, you can't do that. YOU have to pay for the civil trial... AND you eat all the costs if you lose.
So, stop trying to mislead our audience by lying.
You're one step away from losing all credibility by saying that somebody's going to jail for "stealing" your photo.
S.G.
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Holy smokes, I posted a question, was away for a few days, and this thread blew up and went completely off the rails... and off topic. Anyone care to comment on the question below or point me to resources so that I can find an answer? Thank you!
I was hoping someone (Oscar?) could provide an update in regard to MF's recent actions (if any) involving these types of cases. Have they initiated any litigation where the allegedly infringed image was part of a bulk registration since the Chaga decision? Have they been initiating more/less litigation in general since the Chaga ruling?
Just curious if their strategy and/or tactics have changed recently.
Thanks!
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CONGRATULATIONS!!!
Ok, my little case is nothing in comparison...
But I hope your victory is a sign for lay people like me to stop having sleepless nights over the demands of settling for an exorbitant amount of money or risk owing upwards to the tune of $30,000.
After receiving an infringement letter and finding out that using neato images I find on google is not cool because they might be someones work, I took it off my site immediately along with every other image I had up.
Regarding the one I am being threatened over, I found one much much nicer and paid less than $2 for it! Soooooo annoying! I am an independent massage therapist, the image was for my "Energy Work" tab....Thing is I have never in my 20 years of practice booked an energy treatment! Ugh. I can see if I printed it and sold stuff with the image on it...ya, maybe a case...But I made zero dollars from the use of that stupid out of focus photo!
This trolling / extortion etc. is disgusting!!
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Hey RoseBud: Sorry for the delay in responding to your question. MF has not changed its program at all in light of Chaga. They just say the case is on appeal and we are confident that it will be overturned. I spoke with the court recently and they expect a decision on the Alaska Stock case (which is essentially identical to the Chaga case) by the end of the year.
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Thank you Oscar! I really appreciate you taking the time to share your knowledge and expertise.
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BTW as I learned on this forum, a new decision has come down from the Fourth Circuit that says the exact opposite of Alaska Stock and Chaga. So the decision from the Ninth becomes even more important.
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What is this case Oscar? I would like to look at it.
BTW as I learned on this forum, a new decision has come down from the Fourth Circuit that says the exact opposite of Alaska Stock and Chaga. So the decision from the Ninth becomes even more important.
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Any update on this? I'd like to find out whether it's relevant to the lawsuit Masterfile has just threatened me with, since I'm in California.